Comments on: MBE Question of the Day #48 http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Sun, 01 Aug 2010 09:54:39 +0000 http://wordpress.org/?v=2.9 hourly 1 By: Maryann Herman http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-952 Maryann Herman Tue, 16 Feb 2010 16:02:42 +0000 http://barexambrief.com/?p=917#comment-952 Answer C is correct. The mental element required for the tort of battery is intent to bring about a touching which is harmful, or intent to cause apprehension of a touching if the touching subsequently occurs. Reckless or even willful wanton conduct does not supply the mental intent for battery. Answer A is incorrect. Reckless conduct does not supply the necessary intent to sustain the intentional tort of battery. Answer B is incorrect. Battery is an intentional tort. The determination that a foul was committed does not establish the necessary intent. Answer D is incorrect. While the plaintiff assumes risks inherent in riding in a horse race, she does not assume the risk that another rider intended to harm her. If Daring intended to harm Plaintiff, she would have a valid action in battery even though plaintiff and Daring were engaged in a horse race. There is no implied consent in the horse-racing context to intentional touchings. Answer C is correct. The mental element required for the tort of battery is intent to bring about a touching which is harmful, or intent to cause apprehension of a touching if the touching subsequently occurs. Reckless or even willful wanton conduct does not supply the mental intent for battery.

Answer A is incorrect. Reckless conduct does not supply the necessary intent to sustain the intentional tort of battery.

Answer B is incorrect. Battery is an intentional tort. The determination that a foul was committed does not establish the necessary intent.

Answer D is incorrect. While the plaintiff assumes risks inherent in riding in a horse race, she does not assume the risk that another rider intended to harm her. If Daring intended to harm Plaintiff, she would have a valid action in battery even though plaintiff and Daring were engaged in a horse race. There is no implied consent in the horse-racing context to intentional touchings.

]]> By: Steve http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-951 Steve Tue, 16 Feb 2010 15:41:23 +0000 http://barexambrief.com/?p=917#comment-951 D. inherently dangerous activity, Assumption of the Risk. Plaintiff knows the risk, understands the risk and voluntary takes the risk will bar recovery. D. inherently dangerous activity, Assumption of the Risk. Plaintiff knows the risk, understands the risk and voluntary takes the risk will bar recovery.

]]> By: D http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-946 D Tue, 16 Feb 2010 03:11:52 +0000 http://barexambrief.com/?p=917#comment-946 I still belief the question is on the scope of an implied consent in a sporting activity. I am not sure if the commissioner’s ruling (foul) per se should be regarded as a prima facie element of intent. Daring's conduct will be measured against that of a reasonable person engaging in horse ride. So if such contact is inherent in the sport, despite committing a foul, he can only be liable if his conduct was intentional and exceeds the consent implied by the plaintiff. I still belief the question is on the scope of an implied consent in a sporting activity. I am not sure if the commissioner’s ruling (foul) per se should be regarded as a prima facie element of intent. Daring’s conduct will be measured against that of a reasonable person engaging in horse ride. So if such contact is inherent in the sport, despite committing a foul, he can only be liable if his conduct was intentional and exceeds the consent implied by the plaintiff.

]]> By: Wrelyea http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-945 Wrelyea Mon, 15 Feb 2010 21:25:02 +0000 http://barexambrief.com/?p=917#comment-945 Answer C: because under Tort common law the contact for battery is "harmful or offensive". The offensiveness is measured against a reasonable person standard. Harmful is measured against intention to do an act that ultimately results in "unpermitted" or as described here "impermissible" contact. Here, the intent of battery can be shown becasue the track racing rules required adequate clearance for crossing lanes, and the Racetrack Commission ruled that by cutting in too sharply, Daring caused the injury. The commissions ruling pretty much locks up the reasonable person standard, and Darings act would be considered offensive. Battery...to the Nth degree. Answer C: because under Tort common law the contact for battery is “harmful or offensive”. The offensiveness is measured against a reasonable person standard. Harmful is measured against intention to do an act that ultimately results in “unpermitted” or as described here “impermissible” contact. Here, the intent of battery can be shown becasue the track racing rules required adequate clearance for crossing lanes, and the Racetrack Commission ruled that by cutting in too sharply, Daring caused the injury. The commissions ruling pretty much locks up the reasonable person standard, and Darings act would be considered offensive.

Battery…to the Nth degree.

]]> By: shahin http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-944 shahin Mon, 15 Feb 2010 20:14:23 +0000 http://barexambrief.com/?p=917#comment-944 C C

]]> By: gmevans http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-943 gmevans Mon, 15 Feb 2010 19:50:24 +0000 http://barexambrief.com/?p=917#comment-943 The best answer is C b/c it includes both definitions of a battery. The best answer is C b/c it includes both definitions of a battery.

]]> By: BV http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-942 BV Mon, 15 Feb 2010 19:15:47 +0000 http://barexambrief.com/?p=917#comment-942 C is best. Assumption of risk is not a defense to intentional torts. However, it is a defense to wanton or reckless conduct (that knocks out A). D states Plaintiff assumed the risk of "accidental" injury inherent in riding as a jockey in a horse race. D would be okay if Plaintiff's actions were accidental and based on negligence theory. However, here we are dealing with the intentional tort of battery. C clearly tackles the issue of intent. C is best. Assumption of risk is not a defense to intentional torts. However, it is a defense to wanton or reckless conduct (that knocks out A). D states Plaintiff assumed the risk of “accidental” injury inherent in riding as a jockey in a horse race. D would be okay if Plaintiff’s actions were accidental and based on negligence theory. However, here we are dealing with the intentional tort of battery. C clearly tackles the issue of intent.

]]> By: D http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-941 D Mon, 15 Feb 2010 18:31:57 +0000 http://barexambrief.com/?p=917#comment-941 C; For the "unless" factor C; For the “unless” factor

]]> By: ThomCA http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-940 ThomCA Mon, 15 Feb 2010 17:55:11 +0000 http://barexambrief.com/?p=917#comment-940 C for me also The fact that the Commission ruled Daring broke the a safety rule suggests Daring's action exceeded any implicit consent by the other jockey's C for me also

The fact that the Commission ruled Daring broke the a safety rule suggests Daring’s action exceeded any implicit consent by the other jockey’s

]]> By: Cheese http://barexambrief.com/2010/02/15/mbe-question-of-the-day-48/comment-page-1/#comment-939 Cheese Mon, 15 Feb 2010 17:29:52 +0000 http://barexambrief.com/?p=917#comment-939 C for me. C for me.

]]>